- (1.) A. P. Singh, J. This is defendant's ap peal. Plaintiff-respondent filed Suit No. 277 of 1972 seeking a declaration that order of allotment dated 31-1-1972 made in favour of the appellant in respect of the house in suit was illegal; relief for payment of damages for wrongful occupation of the said house at the rate of Rs. 400 per month amounting to Rs. 2,700 was also sought.
(2.) PLAINTIFF-respondents case was that the house in dispute was constructed by his great grand-father Mahabir Prasad Chaud-hari who had agreed with the State Govern ment on 12-7-1903 for reserving the said house for the occupation of Government officers and not to let out the same or oc cupy it himself without the sanction of the Collector, Gorakhpur. By a subsequent agreement dated 22-4-1910 executed by Mahabir Prasad Chaudhari and the Collec tor, Gorakhpur on behalf of the Govern ment, it was agreed that the land on which the house had been constructed was granted free to Mahabir Prasad Chaudhari and the house thereon shall be reserved for the residence of the Government officer on pay ment of rent and shall not be occupied by the owner or to be let out by him to person other than the Gazetted Government Of ficers without the previous sanction of the Collector. According to the said agreement the proprietor was to make it a condition of lease that the tenant shall not sublet the house or out houses to any person other than the Gazetted officers of Government accustomed to live in European stayle without the previous sanction of the Collec tor and in case any sub-letting was done contrary to the same, the proprietor was bound to act according to the directions of the Collector for eviction of the persons. It is alleged that in accordance with the said agreement the house remained in the tenancy of the Government officers alone and by means of partition in Suit No. 44 of 1957 the house in dispute fell to the share of the respondent. The last tenant in the house was B. D. Pati Tripathi, Civil an Sessions Judge, Gorakhpur, who used to pay rent at the rate of Rs. 72. 50p. per month to the plaintiff. The plaintiff received order dated 5-1-70 of the District Magistrate, Gorakhpur requis itioning the said house under Section 3 of the U. P. (Temporary) Accommodation Req uisition Act, 1947 (hereinafter referred to as 'the Accommodation Requisition Act') and directing Sri. B. D. Pati Tripathi to deliver possession of the house to him. After the house was vacated by Sri B. D. Pati Tripathi, the plaintiff received another order dated 31-1-72 passed by the District Magistrate, Gorakhpur allotting the house to the defen dant under U. P. Government Servants Act, 1960. The said order has been challenged on the grounds mentioned in Para 11 of the plaint. It is alleged that there has not been a contract of tenancy between the respondent and the appellant and the possession of the appellant is that of a trespasser. The respon dent claimed damages at the rate of Rs. 300 per month alleging that as the land on which the house stands belonged to the Govern ment under the terms of the agreement and respondent is not entitled to actual posses sion over the land and the house so the relief of possession is not being claimed. It has been alleged that the appellant has sub-let the house 'sugam Vari' without the permis sion in writing of the respondent and also cut down trees and plough the pathway and the flower beds in the premises in dispute. The appellant contested the suit ad mitting that the last occupation of the house in dispute was of Sri B. D. Pati Tripathi, and he used to pay rent at the rate of Rs. 72. 50 p. , the fact that the house had been requisi tioned by the Collector under the Accom modation Requisition Act and had been al lotted to the appellant vide order dated 31-1-72. It is alleged that the Collector, Gorakhpur had full powers to allot the house in dispute and Mahabir Prasad Chaudhari and his heirs had no right to occupy the house themselves or to let out the same to any one without the permission of the Collector. It is claimed that according to Article 194 of the Constitution of India the benefits given to the Gazetted Officers of the State Government are also given to the members of the Legislative Assembly and in these circumstances the allotment in favour of the defendant was wholly legal. Possession over the whole premises in dis pute was given to the appellant on 8-4-72 and he continues in possession as a tenant under the allotment order dated 31-1-1972. The respondent did not agree to accept rent from him so he has been depositing rent in the Court of Munsif, Gorakhpur. It is al leged that the partition in Suit No. 44 of 1957 is not binding on the State because the State was not a party to the said proceed ings. The requisition under Section 3 of Accommodation Requisition Act was legal, the Collector Gorakhpur had delegated his power to Sri Tewari and he had full rights to sign the allotment order on behalf of the Collector, Gorakhpur. It has been denied that the appellant has sub-let the house to 'sugam Vani' or has cut away trees, though it has been admitted that certain buses had been cut away in order to clean the premises. It is claimed that the appellant is a tenant and not a trespasser and the respon dent is not entitled to the damages at the rate claimed. It is pleaded that the suit is bad for non-joinder of State of U. P. and Collec tor, Gorakhpur. Suit is under valued; court fee paid is insufficient and the court has no jurisdiction to try the suit. It was also pleaded that the plaintiff did not have any right to sue and the suit was barred by Sec tion 34 of the Specific Relief Act. The grounds which were specified by the respondent in para 11 of the the plaint for challenging the allotment order dated 31-1-1972 read as follows: " (a) That according to the terms of the agreement dated 22-4-1910 referred to above, the District Magistrate had no power to requisition the said house dated 5-1-70 under Section 3 of the U. P. Temporary Accommodation Requistion Act, 1947 for public purposes. The plaintiff is advised that the said requisition by the District Magistrate ismalafide, and not in good faith. (b) That the allotment of the said house has been made under the U. P. Grant Act, 1960 to the defendant which act is not applicant to the house in suit. (c) That allotment order dated 31-1-72 has been signed by Sri D. N. Tewari for District Magistrate, Gorakhpur who has no authority to sign this allotment order under the Government Grants Act, 1960 because the District Magistrate had not delegated his powers under the Govern ment Grant Act, 1960 to Sri D. N. Tewari for signing the allotment of the house in dispute. Moreover if there is any delegation then the same is without jurisdiction, illegal, invalid and inopera tive. (d) That the U. P. (Tempy) Control of Rent and Eviction Act was applicable to the house in dispute and the allotment order was not passed under the provisions of the said Act. (e) That the defendant is not a Government Officer posted in a district so that house cannot be allotted to him because it can only be allotted to the Guvernrrjent Officers posted in the distinct. (f) That the allotment order in favour of a person other than a Government Officer is against the terms of the agreement dated 22-4-1910 referred to above, and as such, it is obvious that the Government does not stand in need of the house which may be released in favour of the plaintiff. (g) That Sri Ram Ratan Singh has sublet the house to 'sugambani' a weekly newspaper without having the permission in writing in ac cordance to the agreement. (h) That Sri Ram Karan Singh has also cut down trees and has ploughed the land and the rasta and the flower beds and pucca rasta leading to the Gulambarh with tractor causing great loss to the plaintiff. "
(3.) ON the pleadings of the parties, the Civil Judge who tried the suit, framed as many as all issues out of which issues 1 to 4, 6, 8, 9 and 10 related to the merits of the case; the remaining issues were in respect of technical pleas which were raised by the appellant in his written statement, all of which were decided in respondent's favour. Issues 1, 8 and 10 related to the legality of the order of allotment on one or the other ground out of which appellant's plea that he was entitled for the benefits of a Gazetted Government Servant was decided against him but other two issues relating to delega tion of power to the Rent Control and Evic tion Officer by the Collector to allot the house in suit and legality of the allotment order was decided against the respondent. Issue No. 4 relating to maintainability of the suit in view bar imposed by the accommoda tion Requisition Act too was decided in respondent's favour. Issue No. 6 which re lated to question of relationship between the parties was however decided against the respondent and it was held that appellant was respondent's tenant. Issue No. 9 which related to respondent's right to realise damages for use and occupation from appel-ant too was decided against respondent and the trial court held that neither damages for use and occupation of the house in question nor compensation for the requistion of the house nor rent for it could be realised by the respondent against appellant through the suit. " On the basis of the findings so ar rived at by the trial Court, the suit was dis missed in toto. Respondent then filed ap peal under Section 96 of the Code of Civil Procedure, 1908 for questioning the legality of the judgment and decree passed by the trial Court. The appeal was heard by the 1st Additional District Judge, Gorakhpur. The first appellate court allowed the appeal filed by the respondent and the suit was decreed.;